In what circumstances will litigation privilege be asserted against a party who refuses to produce the document?

In Kennedy v. McKenzie, Ducharme J. at para. 23 held that the onus of establishing the factual prerequisites of the claim of litigation privilege over a document rests on the party that seeks to claim privilege. Further, in order to discharge this preliminary onus, the party resisting production is not required to give particulars that would destroy the benefit of any privilege which might properly attach to the documents. However, Ducharme J. observed that in order for a proper determination to be made, they must provide a sufficient description of the documents, the circumstances of their creation and the dominant purpose. He held that once that once this is done, the onus shifts to the party seeking production to justify production on the basis of one of the reasons set out in paras. 42 to 46 of his decision.